On 13 May 2021, a panel of five High Court justices unanimously adopted a significant ruling disqualifying The Constitution of Kenya (Amendment) Bill, 2020. The bill aimed to implement President Uhuru Kenyatta’s so called “Building Bridges Initiative” (BBI) and was supposed to be the most significant change to the state’s governmental structure since the constitution was adopted in 2010. It included the creation of 70 new constituencies, an increase in parliament seats, the selection of cabinet Secretaries from among members of parliament , the creation of a Prime Minister’s position together with Deputy Prime Ministers, and the creation of a Leader of Official Opposition in the National Assembly.
Having been approved by the legislature, the amendment was awaiting presidential approval after which it would be put to a referendum. The High Court ruled that the constitutional amendments are unconstitutional and, most importantly, that the so-called Basic Structure Doctrine applies in Kenya. Gautam Bhatia called the judgment “an instant classic” and “an example par excellence of transformative constitutionalism”. The judgment is not only a milestone from the perspective of comparative constitutional law; it might also change the future landscape of constitutionalism in Africa.
Constitutional amendment and basic structure doctrine
In a nutshell, the basic structure doctrine is a legal doctrine according to which even in the absence of explicit limitations on the constitutional amendment power, there are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity. The doctrine migrated from Germany to India, where it was accepted by the Supreme Court (see e.g. Kesavananda Bharati v. The State of Kerala and Others, AIR 1973 SC 1461), and from there migrated to other countries, in one name or another (see, for instance, the Slovak Constitutional Court’s “material core” doctrine).
The basic theoretical argument for this idea, as I elaborate in my book Unconstitutional Constitutional Amendments – The Limits of Amendment Powers, is that the constitutional amendment power is not unlimited. The amendment power is a delegated legal competence which acts as a trustee of the people and therefore is limited both explicitly and implicitly.
Firstly, it is limited by those explicit limitations / eternity clauses stipulated in the constitution. Secondly, the body which holds the constitutional amendment power in trust cannot use it to destroy the constitution from which the body’s authority derives in the first place. The amendment power is the internal method that the constitution provides for its self-preservation. By destroying the constitution, the delegated amending power thus undermines its own raison d’être.
There are implied constitutional limitations by which the constitution should not be amended in a way that changes the basic structure and features of the constitution and its identity.
Amending the constitution in a way that would destroy the old and create a new constitution would be an action ultra vires. Also, since every constitution consists of a set of basic principles and features, which determine the totality of the constitutional order and the “spirit of the constitution” and its identity, the constitutional amendment power cannot be used to destroy those basic principles.
The alteration of the constitution’s core would result in the collapse of the entire constitution and its replacement by another. This decision, however, is not left to the delegated organs, but to the people’s primary constituent power and it ought to be taken via the proper channels of higher-level democratic participation and deliberations.
Three layers of sovereignty
The dramatic judgment of the Kenyan Court reflects this general idea very well.
Reading out the judgment, Justice Joel M. Ngugi, a former law professor at the University of Washington, began with a review of Kenya’s constitutional history and the 2010 constitutional process. As we shall later see, this historical review will be important for drawing the exact basic structure limitations. The most important part of the judgment, however, is this: the basic structure doctrine applies in Kenya. In particular, the doctrine limits the authority of amending the constitution (as set forth in sections 255-257) in a way that would change the basic structure of the 2010 Constitution.
According to the court, the sovereignty of the people in its constituent capacity is expressed in three layers. The first one, the Primary Constituent Power, is the extraordinary power to draft or radically change a constitution. This is, in the tradition of Sieyès, the immediate expression of the people. This authority is free and independent of any constitutional restrictions and is unlimited by the constitutional rules and procedures of the previous Constitution.
The Secondary Constituent Power is the constitutive authority for constitutional changes which are not material and therefore do not change the basic structure of the constitution. In Kenya, this power “is exercisable through a referendum subsequent to public participation and Parliamentary process” and may be exercised only in accordance with the procedure set forth in Articles 255-257 of the Constitution.
The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power.
The Constituted Power is a delegated authority limited by the Constitution and derived from it. In Kenya, this limited power to amend the constitution is in the hands of the parliament.
The basic structure doctrine, according to the court, protects fundamental aspects of the constitution from amendment by the secondary or constituted constituent power. In other words, the essential features of the constitution that form the basic structure can only be changed by the people exercising the primary constitutive authority.
The Court’s reasoning on this dimension of the primary constitutive authority marks an extremely important development. In Kenya, the court states that this power can be exercised in four stages: through civic education to provide the public with sufficient information regarding the possibility of participating in the process of establishing or amending the constitution; through public participation, in which the people share their positions on constitutional issues; through deliberations in a Constituent Assembly for the formulation of constitutional ideas through representatives specially elected for establishing or amending the Constitution; and through a referendum for the adoption or rejection of the constitution or the amendments to the basic structure of the constitution.
If constitutional theory regarded the people in its “original constituent power” capacity as either the initiator of the process but not necessarily its executor, or alternatively, as its ratifier at the end, than the Kenyan judgment is crucial in elaborating that for constitutional moments to truly manifest the people’s will, popular participation in constitutional moments should not be limited to a solely “yes” or “no” vote in a referendum but should extend to the stages before, throughout, and after the process of constitutional change. As I claimed elsewhere, “it is the manifestation of ‘we the people’, not simply ‘oui, the people’”.
Foundational structure interpretation
As the notion of constituent power is returning to the front stage of current constitutional theory (see for example only recently: Arato, Colón-Ríos, Rubinelli, Arvidsson, Brännström & Minkkinen, Spång, Patberg, and López Bofill), this amplification of the various stages through which the people’s primary constituent power can be democratically initiated and exercised, provides an important contribution and a ground for both scholarly work and for future constitution-drafters and courts.
The court learned about these implied limitations of the basic structure doctrine from what I term in my book “foundational structure interpretation”: a holistic reading of the constitution, the history and context of the constitution, and the fundamental structure of the constitution, including the Preamble.
The historical point is interesting. According to the court, the 2010 constitution-making process served as a “model . . . of participatory constitution building process” and was a response to the previous “culture of hyper-amendment, especially under one-party states where the constitution was frequently amended for every-day politics which is a mark of what Okoth-Ogendo described as “Constitutions without Constitutionalism”.
Considering this constitutional history of struggle for popular participation in constitution-making and change, and the hyper-amendment culture, the court notes that “these principles of interpretation, applied to the question at hand, yield the conclusion that Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments”.
This latter emphasis on “destruction through gradual amendments” is especially important in the current era of populist constitutionalism in which constitutional democracies are eroded through subtle and gradual means, by a “straw that broke the Constitution’s back”.
Thus, the court held that the core of the constitution, the foundations of constitution-building, cannot be transformed without summoning the primary constituent power of the people. And this point is crucial for any criticism that might – and probably will – arise from the decision. When the court enforces the implied limitations on constitutional amendments, it ensures that the amendment power does not exceed its authority, and thereby protects popular sovereignty and the vertical separation of powers between the primary constituent power of the people and the secondary constituent power.
In addition, the court ruled that the president has no authority to initiate changes to the constitution, and that only parliament, through a parliamentary initiative or through a popular initiative, can initiate a constitutional amendment. Giving the president the authority to initiate amendments which should be made through a popular initiative, would grant the president the dual role of initiating and deciding on the amendment – and therefore put him in a conflict of interest: “The President cannot be both player and the umpire in the same match.”
The court further ruled that the matter as such was justiciable and that legal proceedings could be initiated against an incumbent president for any violation of the constitution. The Steering Committee, which was established for the Implementation of the BBI, is unconstitutional and therefore cannot initiate constitutional changes. By initiating and promoting the process of constitutional change contrary to the constitution, the president violated the constitution.
Winds of change?
Apparently, an appeal of the court’s decision will be filed at the Court of Appeal, but it is difficult to predict how the matter will be decided. On the one hand, affirming the decision would mean going against a strong political leadership based on a substantive rather than a formal interpretation of the constitution. On the other hand, the High Court discussed all the issues comprehensively and convincingly, and it might be difficult for the court to go against such a grounded decision that guards constitutionalism and the people’s constituent power. Gitobu Imanyara writes that:
“The . . . court has saved our hard-won constitution from the most serious assault it has faced during the ten years of its existence. The culture of rule of law and constitutionalism that our country is settling into has been entrenched.”
And Joshua Malidzo Nyawa adds,
“This decision sets a tempo in our constitutional democracy. It tells the wielders of state power that they are subject to the Constitution, reminding Judges that it is their duty to protect and safeguard the Constitution and its aura.”
Beyond the implications for Kenya, this ruling could have wider implications in Africa. It might signal the prospect for the much needed consolidation of constitutionalism and democracy in Africa. The news of the dramatic ruling will have already reached courts in other countries of the continent such as Zimbabwe, where the High Court recently held hearings concerning petitions against constitutional amendments. And indeed, two days after the Kenya decision, on 15 May 2021, the High Court of Zimbabwe declared that the decision of President Emmerson Mnangagwa to extend Chief Justice Luke Malaba’s tenure by five years through a constitutional amendment was invalid because it breached the constitution.
Perhaps these judicial decisions signal the winds of change for constitutionalism in Africa.
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Art of War by Other Means: How Africa’s Leaders Have Become the Masters of Information Warfare
Authoritarian regimes in Africa may be perfecting the art of shutting down the internet as an advanced form of rigging the elections, with the help of western based internet based companies and platforms.
With weeks to go until the Ugandan presidential election on January 14, 2021, Ugandan readers of The Elephant, an online platform published in Nairobi, Kenya, suddenly could not access its site. Typically, at first, they presumed, the site was down, or was experiencing some normal malfunctions associated with the heavy use of such a platform. So, they really were not duly concerned, they knew the site managers would no sooner fix the problem. But after a week, or so, word started filtering out from Kampala to Nairobi, that The Elephant site had been hacked and interfered with, and the worst thought was that the Ugandan government had shut down the website. Indeed, it had precisely done that. The publisher John Githongo had to explain to the Ugandan readers, on January 14, 2021, why they were experiencing difficulties accessing the site.
“For about a month now, some of our readers within Uganda have been reporting problems accessing the website. Following receipt of these reports, we launched investigations which have established that The Elephant has been blocked by some, though not all, internet service providers in the country. We have further ascertained that the directive to do so came from the Uganda Communication Commission (UCC) and was implemented beginning 12 December, 2020, when we noticed a sudden traffic drop coming from several providers in Uganda, including Africell and Airtel. We have written to the UCC requesting a reason for the blocking, but we are yet to receive a response.”
The publisher assured the readers that the management had temporarily put in place measures to obviate the blocking: “To circumvent the block, a Bifrost mirror has been deployed.” The Bifrost mirror enabled the readers to access the website through a specially established link.
Yoweri Kaguta Museveni, who was inaugurated on May 12, 2021, in Kampala for his sixth record time, is setting a precedent, that of completely clamping down the entire communication system, that may as well be emulated by other African strongmen. Strongmen like President Museveni, who have no intentions whatsoever of abandoning state power, have come up with ingenious methods, every time they are faced with a general election, of winging the election into their favour.
One of the latest methods is temporarily shutting down the internet. “Museveni has gone a step further, Ugandans could not even use short message service (SMS),” said an Al Jazeera newsman who covered the election. “He also made sure that people with cross-country telecommunication roaming services could not use their mobile phones, hence blocking all forms of mobile telephony communication.”
President Museveni’s government resolve to temporarily bring down The Elephant platform was a tacit acknowledgment of two things: The Pan Africanist platform which also covers stories from Uganda, written by Ugandans, could be widely read in the country. Two, that the wonders of the Internet have allowed the platform, to be available to all corners of the country, therefore to anyone, so long as they have a smart phone and can afford some internet bundles.
Towards the end of 2019, I got a Twitter direct message from a Ugandan reader of The Elephant from Jinja town, who told me the publication had become his reliable source of well-analyzed information. When the platform begun writing stories on Uganda, the platform became a must read for him. He told me if there is one thing he uses his internet bundles for, is to download all the stories he wants to read from The Elephant, so as to read them offline later on.
The ‘New Breed’
Yoweri Museveni, it will be recalled, is an ageing East African leader, who in the mid-1990s was part of a group of leaders who were referred to as the “New Breed”. The others were Paul Kagame of Rwanda and Meles Zenawi of Ethiopia. Kagame was then the Vice President and Minister of Defense. Zenawi was until his death in 2012, the Prime Minister. One of the distinguishing characteristics of the “New Breed” leaders was their capacity to control and channel communication effectively to their advantage. So, even as early as in the 1990s, leaders like President Museveni already understood the importance of managing and manipulating information as a way of keeping a stranglehold on state power. In a candid interview, in 1995, one of these “New Breed” leaders told a foreign correspondent that “the handling of information was about the survival of my country”. He could as well have said: it is about my survival to hold onto absolute power.
The influence of the Internet and information communication technology was just beginning to be felt in Africa and savvy political leaders like Kagame and Museveni were alive to the fact that it is the leader who controlled these communication advances that would stay at the apex of power. In essence, they mastered the art of information warfare. Is it any less surprising that the trio become the masters of shutting down the internet every time they are faced with presidential elections?
President Museveni’s government resolve to temporarily bring down The Elephant platform was a tacit acknowledgment of two things: The Pan Africanist platform which also covers stories from Uganda, written by Ugandans, could be widely read in the country.
The latest president to shut down the internet during election time was Denis Sassou Nguesso of the Republic of Congo, which was prior to the March 21, 2021 presidential elections. In a continent that has one of the fastest penetrations of the internet worldwide, African rulers aware of the power of the internet in relaying news and mobilizing crowds, have quickly learned that the new weapon for controlling the flow of information and mass control is the shutting down the internet.
Lisa Garbe, an internet researcher who has done some work on internet shutdowns by the authoritarian regimes of Africa, has aptly noted that “internet shutdowns in African have become the new normal.” To be fair to African despots, it is not only them who have been conspiring to shut down the internet: Four months ago, in Myanmar, a military junta, one morning on February 1, 2021, woke up and overthrew the democratically elected government of state counsellor Aung San Suu Kyi. One of the first things it did, was to shut down the internet as a way of checking the flow of information and controlling crowd mobilization.
President Museveni’s chief opponent this time around was a young man – the 39-year-old Robert Kyagulanyi aka Bobi Wine, who was born four years before the 42-year-old Museveni captured state power in Kampala. Bobi considered a local boy, built his fame as a musician from the Kampala ghetto of Kyadondo, where he is the MP for Kyadondo East constituency. Because of being constantly harassed by Museveni’s security agencies, he could hardly hold political rallies. So, he resorted to investing heavily in social media, as a way of reaching his supporters.
But to Bobi’s (late) realization, he was using a campaign tool that was in complete control of his competitor. “Museveni was intent on shutting off Bobi from all information and communication relayed through the internet connectivity, from his legion of supporters: the tech-savvy millennial and Generation Z, whose use of social media is supposedly second nature to them,” said a foreign journalist who covered the election. Today, the millennial and Generation Z, constitute an upward of 65 percent of the total registered voters, hence, form the largest voting bloc in Uganda. “So even if it meant bringing the entire system altogether down, Museveni wasn’t taking any chances.”
Protests against IMF support
In Uganda, as indeed in many African countries including the East African countries of Kenya, and Tanzania, the most popular social media apps that today frighten the political class, are Facebook, Twitter, WhatsApp, YouTube and Telegram, necessarily in that order. Kenyans on Twitter (KOT), a motley crew of ferocious countrymen, for example, rallied in protesting against the IMF lending any more money to the ruling Jubilee Party. Said Grant Brooke, a social economist in Kenya on his Twitter handle: “Kenyans on Facebook and Twitter rejecting IMF lending Kenya government’s more money is a fascinating sign of things to come in global finance. Government might not care, but IMF is certainly sensitive to bad PR.”
On the eve of Museveni’s swearing-in, angry Ugandans unleashed a swift pushback aimed at the German Embassy in Kampala, after it posted a congratulatory message from Angela Merkel to President Museveni. “Hello followers, we are getting a lot of criticisms for this post…that’s OK.” Hoping to calm down the online warriors, the embassy’s acknowledgement only helped to fuel more anger. At night when everyone was apparently asleep, the embassy deleted the Facebook message.
Without information, the few election observers that were allowed into the country, for example, could not collect and collate data on the electioneering process. “But more fundamentally, Museveni made it nearly impossible to report on the election by the assembled media houses – local and foreign,” Al Jazeera claimed. “The internet shutdown took the media houses 20 years back in time. If you didn’t have satellite capabilities you couldn’t operate. Internet shutdowns not only work against the regime’s political opponents, but are also meant to cripple media operations or make it very expensive and difficult to report on the election.” Today, many of the media houses have invested in social media tools that greatly eased their work and lessened their operational costs.
Bringing the entire system down, Museveni wasn’t taking any chances.
“Some of us who could afford, had to resort to B-Gan and satellite phones to transmit information back to our stations,” said the journalist. B-Gan which stands for Broadband Global Area Network, just like satellite today, is very expensive, few media houses can ill-afford to equip all their journalists with the gadgets.”
Authoritarian regimes in Africa may be perfecting the art of shutting down the internet as an advanced form of rigging the elections, but they are not without a helping hand: Suraya Dadoo, a South African journalist in Johannesburg writes about Circles, an Israel telecoms company, which mostly deals with government helps those government, “intercept data from 3G networks, allows the infiltrator to read messages, emails and listen in on phone calls as they occur.”
Katiba 2010 and the Power of “We the People”: A New Account From Kenya
If South Africa has exported the notion of “transformative constitutionalism 1.0” in the 1990s to the field of comparative constitutionalism, Kenya has provided “transformative constitutionalism 2.0.” that could expand the theory and practice of transformative constitutionalism in the years to come.
On 13 May 2021, the Constitutional and Human Rights Division of the High Court of Kenya handed down an important judgment in David Ndii and Others v Attorney General and Others (BBI judgment). The decision struck down President Uhuru Kenyatta’s the “Constitution of Kenya Amendment Bill, 2020”, engineered through the Building Bridges Initiative (BBI), as unconstitutional. The Constitution of Kenya Amendment Bill was a comprehensive constitutional reform proposal that aimed to introduce some fundamental changes to several chapters of the 2010 Constitution of Kenya to “build a lasting unity in the country.” For example, the redesign of the legislature by bringing the Government back to Parliament, the expansion of the national executive by creating the Office of the Prime Minister and Deputy Prime Ministers, the inclusion of the Leader of the Official Opposition in Parliament, and the creation of 70 new constituencies were among the many changes introduced by the Bill.
In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority. The Court found that the Basic Structure Doctrine is applicable in Kenya, that the Constitution of Kenya Amendment Bill is unconstitutional, and that President Kenyatta violated the Constitution in his attempt to amend it through the BBI.
The BBI judgment has already attracted the attention of several scholars. While this case will be further litigated in the Court of Appeal – and we have to wait and see what the final outcome will look like – the judgment offers some unique jurisprudential insights to the Basic Structure Doctrine and transformative constitutionalism. In this column, I analyze the judgment’s contribution to the theory and practice of transformative constitutionalism.
In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority
One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation. This feature of constitutionalism is called transformative constitutionalism. Although transformative constitutionalism may have more normative appeal and descriptive potential to much of the global south, its subject and extent varies widely, and its significance is not limited to the global south.
Even though the normative commitments, theoretical contours, and interpretive frameworks of transformative constitutionalism have been a subject of discussion for quite some time, Karl Klare’s original account captures its essence: transformative constitutionalism is ‘a long-term project of constitutional enactment, interpretation, and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’.
As an interpretive project, transformative constitutionalism may require a break from the liberal individualistic conception and its formal distinction between law and politics. As a broader constitutional vision, it mainly aims to transform rather than preserve the constitutional order and its animating socio-economic, political, and cultural systems. While the BBI judgment is transformative, it is transformative in a unique Kenyan way, and this is what makes the judgment so important to the theory and practice of transformative constitutionalism.
Transformative Constitutionalism as a Jurisprudence of History
Out of the 17 broad issues the Court framed for determination, the first two are the most relevant ones to transformative constitutionalism and are related to the Basic Structure Doctrine: Is the Basic Structure Doctrine applicable in Kenya, and if so, what are its implications for amendment powers in Articles 255 to 257 of the Kenyan Constitution?
To answer these questions, the Court first developed what it called a “canon of interpretation” that includes the underlying ethos of transformative constitutionalism: the interpretation of a transformative constitution, like Kenya, requires the rejection of both liberal formalism and the distinction between “law” and “non-law” matters.
Within such canon of interpretation, the Court resorted to history to determine whether the Basic Structure Doctrine is applicable in Kenya. After carefully examining the constitutional history of Kenya since independence – the history of “hyper-amendment culture”, one-party system, imperial presidency, and elite entrenchment – along with the specific history and processes of constitution-making – public participation and people-driven constitution-making processes and efforts, the Court concluded that “Kenyans intended to protect the Basic Structure of the Constitution they bequeathed to themselves in 2010 from destruction through gradual amendments” Accordingly, the Court found that “there are substantive limits on the constitutional power to amend the Constitution”. The Court further stated that:
To be sure, there is no clause in the Constitution that explicitly makes any article in the Constitution un-amendable. However, the scheme of the Constitution, coupled with its history, structure and nature creates an ineluctable and unmistakable conclusion that the power to amend the Constitution is substantively limited. The structure and history of this Constitution makes it plain that it was the desire of Kenyans to barricade it against destruction by political and other elites. As has been said before, the Kenyan Constitution was one in which Kenyans bequeathed themselves in spite of, and, at times, against the Political and other elites.
As a result, the Court held, the Basic Structure of the Constitution, which “consists of the foundational structure of the Constitution as provided in the Preamble; the eighteen chapters; and the six schedules of the Constitution” that form “the core edifice, foundational structure and values of the Constitution”, which could not be exhaustively listed ex-ante but determined on a case-by-case basis cannot be amended through Articles 255 to 257, i.e., through articles that regulate constitutional amendment. The Basic Structure of the Constitution can only be amended “through a similarly informed and participatory process” through the exercise of “Primary Constituent Power”, which is not bound by previous constitutional rules. The Court builds the Basic Structure Doctrine primarily from the constitutional biography of the nation and the ordinary Kenyans’ quest for and right to meaningfully participate in the constitution and reconstitution of their nation.
A Procedural Turn in Transformative Constitutionalism
If the Court’s use of “radical social history” makes it “an example par excellence of transformative constitutionalism”, as Gautam Bhatia beautifully put it, its further engagement with the Basic Structure Doctrine ushers in a procedural turn in transformative constitutionalism, which could open valuable avenues not only to protect constitutionalism but also to advance a more transformative constitutional vision that reflects the will of the people at any given time without necessarily undergoing war or violent revolution.
According to the Court, “the sovereignty of the People in constitution-making is exercised at three levels”: two are within the bounds of the Constitution and one is outside of it. First, according to the Court, the Basic Structure of the Constitution can only be changed through the exercise of “Primary Constituent Power” – i.e., an extraordinary power to radically change the Constitution without being limited by prior constitutional rules or procedures. In Kenya, while this “Primary Constituent Power” is substantively free to change the Basic Structure of the Constitution, it is procedurally limited. It can only be exercised “after four sequential processes are met: civic education, public participation, constituent assembly debates, and referendum”.
One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation.
Second, other parts of the Constitution, which do not constitute the Basic Structure, could be amended either by the “Secondary Constituent Power” – that is “through a referendum subsequent to public participation and Parliamentary process” or by the “Constituted Power” that is by Parliament, both following the amendment procedures provided in Articles 255 to 257 of the Constitution.
The invention of a normatively open and procedurally regulated “Primary Constituent Power” as the defender of the Basic Structure of the Constitution sheds light not only on transformative constitutionalism’s condition of possibility in bringing about a fundamental constitutional change, but also shows its potential in preventing the fermentation of a violent force (such as war or revolution) that brings about and structures the constituent power in the first place. This is particularly important not only to Kenya, but also to much of the global south, where societies may, first, not afford violent revolutions that could destroy the positive socio-economic and political gains and, second, could not be sure of the dividends of the post-revolutionary constitutional outcomes.
Preservative Constitutionalism as Transformative Constitutionalism
The Court found the BBI engineered Constitution of Kenya Amendment Bill unconstitutional because it falls outside of the three permissible methods of constitutional amendment noted above. It held that the BBI process was initiated by the President, in the words of the Court, who cannot be both “the promoter and the referee” or the “player and the umpire in the same match”.
Essentially, the BBI judgment is preservative of the 2010 Constitution of Kenya and its animating values, principles, and structures, which emanate from and are grounded in the notion of popular sovereignty manifested in the public participation and people-driven constitution-making processes and outcomes – the lack of which had troubled Kenya until 2010. While the Constitution of Kenya may require some improvements, like any constitution in the world, it is important to reiterate that it is almost peerless on the African continent both in the way it came into being and in the way it has structured political power and authority. Therefore, a theory of constitutional adjudication that preserves this constitutional framework and vision is no less transformative than an adjudication that enforces socio-economic rights or advances some progressive and egalitarian ideals.
While transformative constitutionalism has been considered as a ‘metaphor of crossing the bridge’ from ‘where we stand today’, largely being the ‘geography of injustice and inequality’, to a ‘promised land of more justice and equality’, the BBI judgment makes it clear that “protecting the bridge” is as transformative as “enabling its crossing”. Finally, if South Africa has exported the notion of “transformative constitutionalism 1.0” in the 1990s to the field of comparative constitutionalism, Kenya has provided “transformative constitutionalism 2.0.” that could expand the theory and practice of transformative constitutionalism in the years to come. The BBI judgment, beyond its jurisprudential contribution to comparative constitutional studies, may inspire courts on the African continent to execute their constitutional duties.
This article was first published in I·CONnect: the blog of the International Journal of Constitutional Law.
We Are Our History: COVID-19 in India
The novel coronavirus has exposed the ugly underbelly of Prime Minister Modi’s BJP, a party founded on fascist fundamentalism and whose dangerous currents have reached Kenyan shores.
Writers have run out of adjectives to describe the coronavirus situation in India – Horrific! Apocalyptic! Inhuman! Unbelievable! Disastrous! Tragic! . . . and many, many, more. Indians are dying in hospital corridors, on the streets and in their homes as they try to get a hospital bed. Parks and car parks have been turned into cremation grounds and piles of wood are being fought over to burn the dead. Exhausted doctors, frontline workers and cremators are at breaking point. And now COVID-19 is exploding in rural India as migrants return home carrying the virus from the cities, desperate to escape a repeat of the heartless lockdown imposed in December 2020 with only a four-hour notice. Many died on the way as their government abandoned them to their fate, leaving them to walk hundreds of kilometres to their homes.
Harrowing scenes of people gasping for air and helpless carers at their wits end, bloated corpses floating in the sacred Ganges River. . . Here in Kenya we feel the pain of our fellow human beings.
There are of course many theories as to what has caused this calamity; the superspreader events such as the Kumbh Mela and the election campaign rallies in Bengal, the failure of India’s vaccine producers – one of the largest in the world – to execute its mandate, the apparent collapse of the public health system, the newly mutated Indian variant. Arundhati Roy asserts that since the massive privatisation of healthcare there has not been any public health system to speak of in India. The silencing of all patriotic and progressive media, print and electronic, has resulted in the Indian population being completely kept in the dark, unaware of the extent of the tragedy and what they could or should be doing to help themselves. We in Kenya are probably better informed of the COVID-19 situation in India than its own citizens are, and Twitter is helping Modi out by deactivating accounts critical of his government.
And then, rubbing salt into this raw wound is India’s obscenely wealthy class which is flaunting its US dollars to get preferential treatment and the best of everything there is. It is their right, they insist, in the India that they have created. The black market for oxygen cylinders and other medical supplies is booming, and desperate families are being fleeced by ruthless doctors, ambulance drivers and cremation supervisors. Just last year Modi was boasting that India had contained the virus. “Too good to be true”, tweeted a politically correct journalist, Shekhar Gupta. Too full of themselves they did not hear the scientists’ warnings: “There will be a second wave!”
What is now beyond dispute is that Prime Minister Modi’s government has failed miserably. But believe it or not, there is not a word of regret, a visit to a hospital, a gesture of sympathy, or even recognition that the suffering has escalated. My question is, should we be surprised?
I learnt an important lesson while watching the recent vetting process to select the next chief justice of Kenya. Judge David Majanja asked Senior Counsel Philip Murgor whether he had any regrets for his actions as Chief Prosecutor during the Mwakenya trials. (For those who may not be aware of this particular dark part of our history, the Judge was referring to the kangaroo courts which were held in 1985-88, always after sunset, and where Kenyans who were demanding their basic human rights were consigned to the Nyayo torture chambers, prison and detention. Some died, and those who survived were scarred for life.) Mr Murgor replied that he had acted professionally and had done his best. Well, needless to say, Mr Murgor was not selected for the post – his history had caught up with him.
You must be wondering why I have digressed from the subject of India. It is because the truth struck me then that “we are our history”, and that we cannot escape it. More importantly, we should never ignore it. Should Indians and the world have expected anything different from Mr Modi and his BJP Party? Let us take a quick look at their histories, starting with Mr Modi.
In order to escape the ignominy of being labelled OBC (Other Backward Classes in India) Modi referred to himself as the “son of a chai wallah” (tea seller). In 2002, as chief minister of Gujarat, he oversaw the brutal massacre of Muslims in his state and presented himself as the saviour of Hindu India. The Gujarat Pogrom was ostensibly a reaction to the deaths of Hindu pilgrims when the railway coach they were travelling in caught fire in Godhra. This tragedy was blamed on Muslim terrorism; not only did Modi not try to quell the furious, rampaging mobs, but he is widely believed to have encouraged them. What is certain is that thousands of Muslims were literally butchered and burnt alive; they received neither police protection nor humanitarian aid. This calamity was Modi’s vehicle to the premiership. Horrified, the US and UK governments barred Modi from entering their countries, but the bans were soon lifted as Modi opened his “beloved” country to imperialist exploitation and went on to embrace Donald Trump and Benjamin Netanyahu.
The truth struck me then that “we are our history”, and that we cannot escape it.
Interestingly, the Modi phenomenon was preceded by a very similar saga in Kenya just a year earlier. In March 2013, newspaper headlines around the globe informed their readers that Kenya had elected as their top leaders, two suspects who were being tried by the International Criminal Court for “crimes against humanity”. The charges against Uhuru Kenyatta (now President) and William Ruto (now Deputy President) were in connection with their alleged role in the 2007-8 post-election chaos in Kenya that left more than 1,200 people dead and many others raped and wounded, and forced about 600,000 to flee their homes.
The cases were suspended for lack of evidence, with the chief judge, Chile Eboe-Osuji of Nigeria, declaring a mistrial “due to a troubling incidence of witness interference and intolerable political meddling.” “The government was blocking most avenues of investigation and witnesses were threatened and bribed,” the prosecution said. To date, neither of the suspects has been acquitted by the court.
Many Kenyans watched the subsequent celebrations in utter disbelief and dismay, hoping against hope that international censure would bring back sanity. “Choices have consequences,” Western leaders warned, distancing and themselves and choosing to restrict diplomatic relations to “essential contact”. But soon, too soon, Western economic and security interests superseded their moral concerns, driving them to resume business as usual.
As Uhuru Kenyatta approaches the end of his presidential term, the country is not only extremely polarised but the economy is in the ICU and corruption is at its worst ever. Civil society has been silenced, the media compromised, parliament is a rubber stamp for the executive and the judiciary is under constant threat. Poverty, injustice and gross inequality are the order of the day.
A similar scenario has unfolded in India. Modi’s demonetisation policy has broken the back of India’s small business sector and his attempt to corporatise agriculture has been met with the largest farmers’ demonstration ever. His reneging on the United Nation Security Council Resolution 47 for Kashmir, and the passing of the National Register of Citizens (NRC) and the Citizenship Amendment Act (CAA) in 2020, all blatantly discriminate against Muslims, rendering stateless the second largest population of Muslims in the world after Indonesia. Forcing back home the few thousand Rohingyas who had sought refuge from the murderous Myanmar regime – and so much else – points to an authoritarian, fascist leader whose satanic character COVID-19 has now exposed further.
Am I being melodramatic? Extremist? Biased? Is this history not evidence enough? I ask because there is much else that is far more sinister and ominous. The roots of Modi and his BJP Party run deep and are firmly embedded in an organisation known as the RSS (Rashtriya Swayamsevak Sangh).
The RSS was formed in 1925 in colonial India to achieve freedom, not by driving out the British, please note, but by “defending religion and culture”. Hinduism is not a doctrinaire religion; it does not have a definitive scripture or value system, nor does it have laid down laws and rituals that must be observed, and its followers even have a wide choice of deities to choose from. But there has always been a section of Hindus who have felt the need to “get organised” and have a well-defined identity. Adopting certain dress codes and vegetarian diets, promoting the Hindi language and endorsing Hindu festivals such as Diwali and Holi are just a few of the strategies towards these objectives.
The spectre of “conversion to other faiths” has been of increasing concern, and probably goes back to when the Mughals ruled India. In the last century, Christian missionaries from the USA had made inroads into the Adivasi or hill tribes of India but have since been expelled. In order to escape their “pre-destined” sub-human condition, some Dalits or Untouchables, have converted to Islam or Christianity. B.R. Ambedkar, the father of India’s Independence Constitution and a Dalit himself, became a Buddhist and advised his people to do the same. To these realities have been added totally unsubstantiated fears of a portended demographic shift which would reduce the Hindus to a minority in their own homeland.
The roots of Modi and his BJP Party run deep and are firmly embedded in an organisation known as the RSS.
While in their time Gandhi, Nehru and others unequivocally espoused a democratic, socialist and secular India, today there are no significant and sustained counter-narratives to the rising tide of Hindu chauvinism and RSS ideology.
Although the RSS was against the caste system, it did not support its abolition. Drawn from upper caste Brahmins, the RSS leaders were focussed on a Hindu renaissance and were enthused by Hitler’s efforts to create a supreme Aryan race and eliminate minorities. It was, and still is, a highly organised paramilitary outfit with its own militias; in 2016 it had between five and six million members and 56,859 branches throughout India.
In a letter to the heads of provincial governments in December 1947, the year of India’s independence from British rule, Prime Minister Nehru wrote, “we have a great deal of evidence to show that RSS is an organisation which is in the nature of a private army and which is definitely proceeding on the strictest Nazi lines, even following the techniques of the organisation.” It was an RSS adherent, Nathuram Godse, who shot and killed Mahatma Gandhi. It was also the RSS which engineered the destruction of Babri Masjid (it was claimed, in spite of archaeological evidence to the contrary, that the mosque was built over a Hindu temple) and which is fuelling the fires against Muslims, Christians and Dalits, and radically altering the status of Kashmir.
In 1980, former Jana Sangh Party members belonging to the RSS formed a new party, the Bharatiya Janata Party or BJP. After several attempts, the BJP achieved its most desired goal in 2014: the Prime Ministership of India in the person of Narendra Modi and ministerial positions for his closest allies. The RSS could now actualise its fascist Hindutva pogrom in defiance of the late former Prime Minister Nehru’s democratic, secular and socialist ideals. What is happening in India today is the product of that history of decades past. The egoism, the hatred, the repression, the inhumanity and the idiocy continue.
And like all fundamentalist movements, the RSS gauges its success by how far it can spread its toxic presence; in today’s global village there are no borders. The RSS has branches in Europe, Canada and the US. In Africa it has a presence in Kenya and possibly elsewhere too. In the presence of global insecurity and yawning economic divides, people are seeking protection within their ethnic, religious or racial enclaves. The rise of right-wing politics, embodied most significantly by Trump, Bolsanaro and Modi, serves the objectives of the dividers rather than those of the unifiers, the dictators rather than the democrats. White Supremacy in the US bears the same imprint as the RSS. Of course, outside India the RSS relinquishes its militaristic role and operates under the guise of teaching Hindu culture and language. In the public sphere, it promotes yoga for all and in times of crisis and need, it is at the forefront in providing the highly organised and very efficient and incorruptible social and welfare services it has developed.
The RSS could now actualise its fascist Hindutva pogrom in defiance of the late former Prime Minister Nehru’s democratic, secular and socialist ideals.
The RSS’s raison d’être abroad is to secure the loyalty and ties of Hindu minorities to their motherland India, to lead them to embrace the ideology of Hindutva and maintain the purity of their race and religion. Citizenship in their adopted country then becomes a mere paper transaction and the issue of nationhood is not even on the horizon.
This is not to say that all Hindus in Kenya or India are affiliated to the RSS, or even approve of it. Far from it. But if the huge crowd of very animated Kenyan Indians who turned up at Kasarani Stadium to welcome Mr Modi on 10 July 2016 is anything to go by, the RSS is well entrenched in Kenya – a fascist fundamentalism among several others – all of which deflect us from achieving the democratic, equitable, just and humanitarian Kenya that most of us long for, and many of us work towards. Kenyans need to be vigilant against the dangerous currents circulating among us and be fully aware of the hurdles we have to overcome. COVID-19 has much to teach us, and lest we forget, we are our history.
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